Changes to discrimination type claims

There have been a number of recent cases where the Employment Appeal Tribunal has reconsidered areas of law relating to discrimination. Topics that have been considered include what can be deemed as continuing acts in disability discrimination claims, the extent of an employer’s duty to make reasonable adjustments, and the scope for beliefs to be protected by the Equality Act.

Continuing Acts

In the case of Allen v Worcestershire Health and Care NHS Trust, the employer was undertaking a restructuring process and as a result offered the employee in question a lower pay grade role. This was not accepted by the Employee and the Employer eventually dismissed the employee for ill health.

The employee brought a claim in the tribunal for unfair dismissal, together with age and disability discrimination.

In discrimination claims, the time limits to bring such a claim is 3 months less one day from the alleged discriminatory act. However, if an employee can establish that the discriminatory treatment formed part of a series of continuing acts, the Tribunal can consider events which took place more than 3 months before the claim is issued. This was an issue being considered in this case.

The Employment Appeal Tribunal held that for a claim for discrimination which relies on a series of events, the discriminatory conduct must be ongoing; ‘it is not enough that later events would not have occurred but for the earlier events’. Therefore, there must be something in the conduct that involves the continuation of discrimination in order for the Tribunal to be able to consider the events as part of a series.

This will be relevant to employers who are currently facing claims for discrimination, but also should be considered by employers who have employees with long-term medical issues who could consider bringing claims in the future.

Reasonable adjustments

The Tribunal considered reasonable adjustments that should be made by an employer in the case of Miller v Rentokill.

The background to this case was that the employee was a field-based pest controller who had been diagnosed with multiple sclerosis. This new diagnosis meant that he could no longer work in his field-based role which required him to be physically fit and be able to work at heights.

The employer had a potential alternative role as an administrator, however rather than offering this role to the employee on a trial basis, the employer dismissed the employee on the basis that the role was not suitable.

Due to the employee’s diagnosis, his employer was under a duty to make reasonable adjustments to minimise any disadvantage arising from his disability. The employee successfully argued that placing him in the alternative role would have been potentially appropriate and suitable. It was therefore held that the employer did not make reasonable adjustments by at least offering the role on a trial basis, and so the tribunal found in favour of the employee.

The Employer should have considered alternative roles within the organisation as a reasonable adjustment for the employee who had become unable to fulfil his current role due to disability.

The key points to note from this case are that for an Employer to show that they have considered making reasonable adjustments for an employee who has a disability, if an alternative role is available in the business then the employer must establish a genuine reason for them not to be considered for the role. The burden is therefore firmly on the employer when attempting to discharge this duty in practice and at the Tribunal.

The fact that the role could have been offered on a trial basis was also a significant factor for the Tribunal. It was not reasonable for the employer to reach an objective decision of dismissal by taking into account the suitability of the role and whether or not the employee met its essential requirements. The fact that the employer could have made temporary arrangements meant that it was more likely that the adjustment would have been a reasonable one.

Belief discrimination

We have previously commented at length in relation to recent cases concerning religious belief discrimination. This has been considered again recently in the case of Omooba v Michael Garret Associates. The employee was a theatre actress and following her dismissal brought a claim for religion/belief discrimination, harassment and breach of contract.

In this case, the employee had become involved in a theatre production in “The Color Purple” for the employer which depicted a romantic relationship between two women. Whilst the employee was not aware of the plot of the production when accepting the lead role, the employer took action when it subsequently became aware of the employee’s beliefs that homosexuality was sinful, which she had shared on Twitter years prior but had later resurfaced. The employee was dismissed and raised a claim for religious/belief discrimination due to her beliefs as a Christian on homosexuality.

It was held by the Employment Appeal Tribunal that the acts of the Employer did not constitute direct discrimination. Instead, the employee was dismissed because of the adverse publicity from the social media ‘retweet’ on the cast, the audience, the reputation of the producers and the commercial success of the production.

The claims raised by the employee for harassment and breach of contract similarly failed with the tribunal putting much weight to the fact that the employee, if she had known what the role involved, would not have taken on the job due to her beliefs. This meant that she would not have performed the role and therefore would not have suffered any loss.

It is worth employers noting in this case, that where there was a genuine concern that the employee’s conduct would adversely affect the employer’s reputation and wider business, the employee was not entitled to rely on religion or belief discrimination, even if her belief was the root of the event causing the dismissal.

However, if employers try to rely on such an argument, they are likely to result in walking a very thin line, as in practice establishing the exact reason for the dismissal is likely to be problematic. We would therefore urge caution before employers rely too strongly on this judgment where faced with potentially problematic discrimination claims.

Get In Touch

Get In Touch

For further information, or a free no obligation chat, contact: